Judicial Overreach

Making a final evaluation of the U.S. Supreme Court, Willis in his Constitutional Law said that 'the final judgment of the American people will be that their constitutional rights are safe in the hands of the judiciary.' He paraphrased William Wirt that if the judiciary were struck from our system, there would be little of value that would remain. And that it would be as rational to talk of a solar system without a sun as to talk of a government in the U.S. without the Supreme Court. This tribute can fittingly be addressed to our Supreme Court too.

At the end of the day, in spite of some ups and downs and well-meaning and justified criticisms, what was said about the American Supreme Court by Chief Justice Charles Evans Hughes, “The Republic endures and this (the Supreme Court) is the symbol of our faith” truly applies to the Indian judiciary, especially the Supreme Court. It is imperative for everyone to ensure that this is not diluted.

The recent developments relating to the Supreme Court's action/reaction to a book published by NCERT which in a chapter on the judiciary also spoke of 'judicial corruption', are alarming and would have a chilling effect on free speech, transparency and all the constitutional values we hold dear. The Court's reaction and order viewed from the point of view of jurisdiction and power as also desirability is palpably unsupportable. It raises many serious concerns touching our very foundations.

It is true that it is a textbook prepared by the concerned Department and not a general book voicing the views of the author. To that extent the Court expressing concern may be understandable and justified. But to go further and initiate action for criminal contempt and direct that the book in all forms is removed from public access, impose a complete ban on its publication and circulation, it is submitted, is not well considered and is judicial overreach.

Let us look at the issue straight without frills and emotions, without passion or prejudice. The chapter on the role of the judiciary is said to contain many issues like backlog of cases, lack of adequate infrastructure and corruption in the judiciary. These are not factually wrong. That there is a huge pendency of cases and inadequate infrastructure are too well known and undeniable. Corruption has, and can take, many forms. It is not limited to financial impropriety or taking money as a bribe. It can also be cases of abuse of discretion, misuse of power, conflict of interest in different ways, post-retirement appointments. What is important in such cases is public perception. Intellectual dishonesty is perhaps the worst form of corruption: that is when you know what is right or true and still do not adhere to that. Intellectual integrity is standing by and speaking out for the values and principles one holds sacred. Nothing is so scarce today in every walk of life as intellectual integrity.

That corruption in the judiciary is a fact and not a myth has long been accepted, whatever the dimensions of the corruption. More than 35 years ago, Chief Justice E.S. Venkataramiah spoke of improper behaviour and lack of probity among some judges. Chief Justice J.S. Verma said that it could not be stated that there was not even a single corrupt judge, and he agreed that the rot ran deep in the judicial system. Chief Justice S.P. Bharucha stated that 20 percent of the judges were corrupt. Justice Krishna Iyer wrote in an open letter in 2011:“The judicature, a sacred instrument with great powers to punish corruption, is itself corrupt. Not a single corrupt judge has been caught or punished.” In 2013, he wrote to then President Pranab Mukherjee, seeking a probe and action against some senior Supreme Court judges who, he said, are “suspect of moral deviance”. He told the President that the scourge of bribery tainting politics had not polluted the judiciary for long, but that was “becoming a matter of the past”. And Shanti Bhushan swore to an affidavit before the Supreme Court that eight out of sixteen Chief Justices of India were corrupt and he asked the Court to take up the case and if he was wrong to send him to jail. Nothing was done. Only last month in response to a starred question in Parliament it was stated by the Law Minister that 8,630 complaints were received in the office of the Chief Justice of India against sitting judges during the last 10 years These are merely illustrative. But against this background for anyone to say that the judiciary is untainted and talking about judicial corruption would shake the people's confidence in the judiciary is turning a blind eye to the reality.

The apprehension in some quarters that the executive government was behind including the content that is objected to, even if it is well founded, affords no valid reason to turn one's face away from the problem. Impressions and public perception are important and cannot be brushed aside. The situation can, and will, worsen when we try to push under the carpet such allegations. The truth would have to be faced. What happens if the entire people, or even a great number of them, think, rightly or wrongly, that there is corruption in the judiciary. Neither the contempt power nor the Court's order can do anything in such a situation.

The reasons for the Court's intervention are that it is not proper to teach all this to young impressionable minds of eighth class students and that it gives an impression that corruption is only in the judiciary and not in any other walk of life.

“The necessity for judicial intervention nevertheless has arisen not from a desire to suppress criticism but from the imperative to safeguard the pedagogical integrity of the national curriculum. Young students in their formative years are only beginning to navigate the nuances of public life and the constitutional architecture that sustains it. It is fundamentally improper to expose them to a biased narrative that may engender permanent misconceptions at an age when they lack the perspicacity to appreciate the manifold and onerous responsibilities that are discharged by the judiciary on a day-to-day basis.” The order further says, “The silence and the uninhibited criticism are particularly egregious when viewed in light of the sheer volume of high-ranking officials who have been censured by this very Court in the past for corrupt practices, fraudulent activities and for illicit siphoning of public funds, etc. …”

These reasons, it is submitted, do not seem supportable. While the Court says that it does not desire to suppress criticism, the effect of the order is just that. There can be nothing intrinsically wrong with telling those students the state of affairs. Moreover, what is to be taught, to whom and how is a matter of policy for the educationists and government to decide. That is not within the ken of the Court which has neither the expertise nor the wherewithal. It is undoubtedly true that corruption has percolated into all walks of life; it is more rampant in other walks of life. Not mentioning that in the book is no justification for holding that judicial corruption alone must not be highlighted. The Court's work and contribution have been laudable. But that is no reason not to speak of any deviant behaviour or impropriety in the judiciary.

There is something far more fundamental. When the Constitution gives the judiciary enormous power and responsibility to ensure that everyone must strictly conform to law and to the standards of propriety, the judiciary itself must adhere to those, or even more rigorous, standards. All power is a trust. Judges are trustees. The standards of fiduciary conduct set by Cardozo for even an ordinary trustee is that “he is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is the standard of behaviour.” What then to say of a constitutional trust at once so lofty and so noble!

As Chief Justice Warren Burger warned, “A Court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self indulge itself and the least likely to engage in dispassionate self analysis.... In a country like ours, no public institution, or the people who operate it, can be above public debate.”

“...we remain of the firm conviction that dissent, deliberation and rigorous discourse constitute the very vitality of a living democracy and serve as essential instruments of institutional accountability.” This is a very lofty sentiment, and the idea is the very life breath of our constitutional democracy. But does not the order in which this is stated breach this?

Further, the order infringes the right to express and the right to know. And the Court has done it on its own motion. The Court has no constitutional power to ban books. This is crystal clear. Unfortunately, however, this question of whether or not the Court has the jurisdiction to engage in certain actions has simply disappeared from judicial consideration. Ban on any book or any infringement of the fundamental right under Art 19(1)(a) can be sustained only if it a reasonable restriction on that right and such reasonable restriction, if any, can be imposed only by a law. Plain executive action, even if it is reasonable, cannot violate fundamental rights. Judicial action too cannot. It also violates the separation of powers. The reasonableness of the restriction and the validity of the law is to be adjudicated by the Court. What happens when the Court itself violates?

Justice Douglas remarked that judges are supposed to be “men of fortitude, able to thrive in a hardy climate, who should be able to shrug off contemptuous statements.” Our courts have done so on many occasions. Even stronger and more vitriolic criticism than what is now called in question has been shrugged off wisely by our judges. But there have also been instances of courts being over sensitive which is neither necessary nor desirable. That is nothing but contempt powers being designed to try to maintain a good public image for the judiciary. The attitude and ability to shrug off is what is required and commendable. Indeed at the very beginning, in 1952, the Supreme Court had rightly and wisely cautioned judges never to be over sensitive to public criticism.

Justice Khanna observed with insight, “The strongest weapon in the armoury of the judiciary is its unsullied image, the esteem it evokes and the confidence it enjoys. Reference is sometimes made to the contempt of court power of the judges to command respect. This, perhaps, is not correct and is apt to mislead. Contempt of court, as observed by a great jurist (Lord Denning), 'should not be used as a means to uphold our own dignity. This must rest on surer foundations. ......We must rely on our conduct itself to be its own vindication'.”

The objected chapter holds a mirror to ourselves- to our system with all its glories and frailties. That respect for the judiciary can be won by shielding judges from criticism is a misconception. Muzzling criticism against judges and judgments will not preserve public confidence in courts. That is preserved and enhanced by the work the court does- by its professional competence and moral integrity- and does not depend on what people are publicly allowed to say about it.

In saying all this, the idea is only to ensure that the Court always remains on the highest pedestal. One is fortified by what Justice Holmes said: “I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism…I trust that no one will understand me to be speaking with disrespect of the law, because I criticize it so freely. I venerate the law and especially our system of law, as one of the vastest products of the human mind…But one may criticize even what one reveres. Law is the business to which my life is devoted and I should show less than devotion if I did not do what in me lies to improve it.”

Author is Senior Advocate at Supreme Court of India and Karnataka High Court. Views Are Personal.